[CITE: Harris v. DNR, 10
CADDNAR 289 (2006)]
[VOLUME 10, PAGE 289]
Cause #05-196L
Caption: Dirk Harris v.
DNR
Administrative Law Judge:
Jensen
Attorneys: Bemis; White
Date: June 19, 2006
FINAL ORDER
115. There is no question that under the
circumstances, Harris did violate Standard Operating Procedure 1-1B and 312 IAC
4-6-3(3), primarily as a consequence of his earlier failure to comply with
General Order 22-01-01.
116. Under the circumstances of this proceeding,
the Department has properly imposed discipline in a progressive manner as
contemplated by 312 IAC 4-4-5.
117. The Department’s three (3) day suspension
without pay imposed upon Harris by the Department is affirmed.
FINDINGS OF FACT AND
CONCLUSIONS OF LAW
BACKGROUND:
1. The Claimant, Master Conservation
Officer Dirk Harris (Harris), by
counsel, M. Elizabeth Bemis, initiated the instant proceeding on November 2,
2005 with the filing of a “Petition for
Administrative Review” (Petition).
2. Harris is a sworn, full time Indiana Master Conservation
Officer for the Department of Natural Resources Division of Law Enforcement (Department).
3. According to Harris’ Petition for Administrative Review
a three (3) day suspension, without pay, was imposed by the Department, pursuant
to Special Order #1926, on October 18, 2005.
4. The Department was represented by counsel, Charles P.
White.
5. This proceeding
is governed by the Administrative Orders and Procedures Act, AOPA, codified at
4-21.5-3 et seq. and administrative rules adopted at 312 IAC 3-1 et seq., which
aid in the implementation of AOPA in administrative proceedings before the
Natural Resources Commission (Commission).
6. Substantively this proceeding involves IC 14-9-8-14
and 312 IAC 4-4-5 that control disciplinary actions against conservation officers.
[VOL. 10, PAGE 290]
7. Harris’ qualifies for administrative review as set
forth at 312 IAC 4-4-6(a).
8. The Commission is the “ultimate authority,” as that
term is defined at IC 4-21.5-1-15, with respect to the administrative review of
disciplinary actions taken against conservation officers by the Department. 312 IAC
3-1-2.
9. The Commission possesses
jurisdiction over the persons of the parties and the subject matter of this
proceeding.
10. On December 6, 2005, a
prehearing conference was held as scheduled and thereafter three status
conferences were held before an administrative hearing was commenced and
concluded on April 25, 2006.
FINDINGS OF FACT:
11. In December 2004, Master
Conservation Officer Richard O. Garringer (Garringer),
while investigating a complaint of hunting deer without permission, summoned
the assistance of Harris. Testimony of Garringer, Testimony of Harris.
12. While conducting the
investigation, Garringer and Harris worked different aspects of the case which
resulted in the issuance of citations to two individuals, Gregory E. Ditton and
Dale R. Burton. Testimony of Garringer, Testimony of Harris, Stipulated Exhibits S15
and S16.
13. Subsequent to the issuance
of the citations, the Yorktown Town Court issued a subpoena (Garringer Subpoena) dated March 3, 2005
to Garringer commanding him to appear on April 12, 2005 at 4:00 p.m. for a
trial in State of Indiana v. Gregory E. Ditton (Ditton Trial). Testimony of Garringer, Exhibit S14.
14. Garringer, on an unspecified
date shortly after he received the Ditton Subpoena, inquired whether Harris had
received a subpoena to appear for the Ditton Trial and Harris responded in the
negative. Testimony of Garringer.
15. During the initial
conversation between Harris and Garringer regarding the Ditton Trial, Harris
did not have his schedule available and believed from memory that he was
previously scheduled for vacation the week including April 12, 2005. Testimony
of Garringer and Harris.
16. A second conversation
occurred between Garringer and Harris at least one week before April 12, 2005
and Harris advised Garringer that he was previously mistaken about the dates of
his vacation and he committed himself to attending the Ditton Trial. Testimony
of Garringer and Harris.
[VOL. 10, PAGE 291]
17. Garringer contacted Harris
on April 11, 2005 confirming that the Ditton Trial remained on the
18. Both Harris and Garringer
appeared in the
19. Harris was never issued a
subpoena by the
20. Harris had a scheduled appearance
at
21. Harris called the District 4
Headquarters on April 11, 2005, for the first and only time, to inquire about
splitting his shift on April 12, 2005.
By splitting his shift, Harris would conduct his scheduled business at
22. On April 11, 2005, Harris’
call to the District 4 Headquarters was answered by Jill Scott (Scott), who advised that Lieutenant
Stephen L. Hunter (Hunter) was in “annual
in-service.” Harris knew Hunter would
not have his cellular telephone on in the “annual in-service” so he inquired as
to the availability of Sergeant Thomas Bickford (Bickford). Scott advised
Harris that Bickford was on a day off. Testimony of Harris, Testimony of Scott.
23. Scott is not authorized to
approve split shifts or overtime. Testimony of Harris, Testimony of Hunter,
Testimony of Scott.
24. Harris did not request that
Scott leave a message for Hunter or Bickford.
Testimony of Harris, Testimony of
Scott.
25. Harris did not call Hunter’s
cellular telephone to leave a message regarding his desire to split his shift
on April 12, 2005. Testimony of Harris, Testimony of Hunter.
26. A moderate amount of
evidence was received relating to the appropriateness of the number of hours
claimed by Harris as overtime. This
evidence is generally consistent as to the events that occurred at the
[VOL. 10, PAGE 292]
27. In any event, Harris
submitted to Hunter an “Indiana Conservation Officers Justification for
Overtime” (Justification) seeking overtime
compensation for 2.5 hours worked on April 12, 2005 that were in excess of his
self-determined duty hours.[1] Exhibit
S1.
28. On the Justification, Harris
checked the box indicating that the extra hours were worked because of “other
(specify).” Harris, in specifying the
reason for the extra hours, wrote “subpoena/court.” Testimony
of Harris, Testimony of Hunter, Exhibit S1.
29. Harris also checked the box
which reads, “3. For an official activity affiliated with IDNR responsibilities
or interest and with the prior knowledge and approval of district
command.” Testimony of Harris, Testimony of Hunter, Exhibit S1.
30. The Justification provided
to Hunter by Harris also included a summary that states, “
31. Hunter, who received the
Justification, did not recall having seen Harris’ subpoena to appear for the
Burton case and did not locate a subpoena in Harris’ file so he proceeded to
inquire of the
32. Hunter, who was working
solely off of the information provided in the Justification, was unaware, at
the time of his inquiry to the
33. The
34. On April 28, 2005, Hunter
issued a “Memorandum” to Harris indicating that the Justification submitted for
overtime on April 12, 2005 was being denied but also provided Harris the
opportunity to supplement the Justification.
Testimony of Hunter, Exhibit S3.
[VOL. 10, PAGE 293]
35. In response to Hunter’s
April 28, 2005 Memorandum, on May 14, 2005 Harris provided a copy of
Garringer’s Subpoena, with the sole notation “copy of subpoena for case
involving Burton/Ditton per your request.
Thank you.” Testimony of Hunter, Testimony of Harris, Exhibit S7.
36. Following Harris’ submission
of Garringer’s Subpoena as supplementation to the Justification, Hunter interviewed
Garringer and determined that Harris had been at the
37. In early May 2005, Hunter
met with Harris to discuss the events leading up to Harris’ submission of the
Justification, at which time disciplinary action had not been considered. Testimony
of Hunter.
38. Following the completion of
his inquiry, Hunter prepared a “Statement of Circumstances,” Exhibit S6, a “Statement of Charges,” Exhibit S9, and “Recommendation” for
disciplinary action against Harris, Exhibit
S10.
39. The “Statement of Charges”
identifies Hunter’s conclusions that Harris violated 312 IAC 4-2-2(2), which
requires Harris to “abide by any standard operating procedure, written
directive, general order, special order, or other order issued…” and specifies
that Harris failed to abide by Standard Operating Procedure 1-1B(D)(1)(c)(3)
and 312 IAC 4-6-3(3), each of which require that Harris be accurate, complete
and truthful in all manners, including the completion and submission of Departmental
reports. Exhibit S9.
40. On June 20, 2005, Hunter
recommended a three (3) day suspension be imposed for the stated
violations. Exhibit S10.
41. Hunter’s recommended
disciplinary action was reviewed by chain of command and approved by Captain
Troche on June 21, 2005 and by Captain Presnell, Lieutenant Colonel Crider and
Director Carter on June 22, 2005. Exhibit S8.
42. On June 22, 2005, Director
Carter issued an “Approval for Service” which authorized Hunter to serve the
three (3) day suspension upon Harris as punitive disciplinary action. Exhibit
S11.
43. The disciplinary action was served
upon Harris by Hunter, under the witness of Bickford, on July 13, 2005. Exhibit
S12.
44. While Bickford was not
integrally involved in the investigation that resulted in Harris’ three (3) day
suspension, he agreed that Harris needed to be told “severely” about his
failure to follow procedure. Testimony of Bickford.
[VOL. 10, PAGE 294]
45. Bickford testified that
Harris has the potential to be a “fantastic” officer but that he needs to
follow the rules. Testimony of Bickford.
46. Hunter testified that
Harris’ communication with his chain of command has not been good and that the
history of past disciplinary actions against Harris, including previous
suspensions, in large part relate to repeated failures to follow
procedures. Testimony of Hunter.
47. Harris has been suspended
five (5) times in his career, with three (3) of those suspensions occurring in
the past four to five years and Harris has received numerous reprimands and
counselings. Testimony of Hunter, Testimony of Harris.
48. Harris has been counseled on
two previous occasions relating to unsubstantiated overtime compensations
requests. Testimony of Hunter.
49. During the service of the
disciplinary action a conversation ensued in which Harris indicated concern
that the instant suspension along with his past history of suspensions and other
disciplinary actions were going to result in his being fired. Hunter, for the first time, believed that
Harris was “listening” and was exhibiting a genuine willingness to
improve. Testimony of Hunter, Testimony of Bickford.
50. During the July 13, 2005
meeting, Hunter and Bickford discussed with Harris steps he might make to
improve his behavior and productivity. Testimony of Hunter, Exhibit S2.
51. Bickford similarly recalled
of the July 13, 2005 meeting that Harris had verbally acknowledged his
responsibility for past procedural violations as well as the existing situation
and agreed to address his shortcomings.
Harris inquired at that meeting whether there was anything he could do
to avoid the imposition of the suspension.
Testimony of Bickford.
52. Because Hunter perceived
Harris’ comments at the July 13, 2005 disciplinary meeting to be a genuine
first step toward improving Harris’ behavior and productivity, he offered
Harris an alternative that would allow the recall of the three (3) day
suspension. Testimony of Hunter, Testimony of Bickford, Testimony of Harris.
53. The alternative offered by
Hunter to Harris involved Harris writing a document in which he was to
acknowledge his failures to follow procedure, accept responsibility for the
problems he has created and provide Hunter with assurances that he would
implement methods of rectifying his behavior.
Through this document it was Hunter’s intention for Harris to acknowledge
what was “broken” so “repairs” could be made. Testimony
of Hunter.
[VOL. 10, PAGE 295]
54. Hunter testified that he had
attended a class designed to assist supervisors in dealing with problem
employees and the alternative offered to Harris was something he learned at
that class. Testimony of Hunter.
55. Harris did not dispute
Hunter’s or Bickford’s testimony with respect to his past failures to follow
procedure or the past disciplinary actions taken against him. Testimony
of Harris.
56. Bickford testified that
there was nothing unclear in Hunter’s instructions regarding the memorandum
sought from Harris.
57. Harris, contradictory to the
testimony of Bickford, indicated that it was unclear to him what Hunter
anticipated in terms of assurances. Testimony of Harris.
58. On July 15, 2005 Harris submitted to Hunter a
Memorandum in response to the July 13, 2005 meeting with Hunter. Exhibit
S5.
59. Harris’ July 15, 2005 Memorandum
merely provides additional detail of the events associated with the April 12,
2005 overtime Justification. Harris does
not acknowledge any responsibility for his actions, identify areas in which he
needs to improve or make any assurances that he actually intended to modify his
behavior. Testimony of Harris, Exhibit S5.
60. Consequently, on July 19,
2005 Hunter rejected Harris’ July 15, 2005 Memorandum and proceeded to impose
the three (3) day suspension. Testimony of Hunter, Testimony of Harris, Exhibit
S2.
61. Harris testified that he had
no intention to deceive his chain of command by the manner in which he
completed the Justification associated with his overtime on April 12,
2005.
62. Harris indicated that his
reference to the “
63. With respect to Harris’
indication of “subpoena/court” as the reason for the overtime, Harris acknowledged
that in hindsight he should have identified the reason for the overtime
differently. Testimony of Harris.
64. Harris provided three (3)
additional “Indiana Conservation Officers Justification for Overtime” forms that
had previously been approved by Hunter for comparison to the Justification at
issue here. Exhibit, S1, Claimant’s Exhibit B, Claimant’s
Exhibit C and Claimant’s Exhibit D.
[VOL. 10, PAGE 296]
65. On the three previous
occasions, Harris cited the reason for the overtime as “court subpoena” as
compared to this instance in which Harris wrote, “subpoena/court.”
66. Harris further differentiated between his
previously submitted “Indiana Conservation Officers Justification for Overtime”
and the instant Justification by noting that in the summary portion of the
three previous forms he specifically stated that he was served a subpoena.
67. Despite the general
knowledge of other conservation officers regarding the need to obtain prior
approval for overtime in situations similar to the one presented here, Harris
maintained that he was unaware that he needed to obtain prior approval to
accrue overtime for appearing in court without a subpoena. Compare:
Testimony of Harris, Testimony of Garringer, Testimony of Ed Rucker, Testimony
of Tom Koester.
68. Because of Harris’ belief
that accruing overtime for appearing in court does not require prior approval
he concluded that the options provided on the “Indiana Conservation Officers
Justification for Overtime” form do not accommodate this situation. Testimony
of Harris.
69. Harris’ referred to his
previously approved “Indiana Conservation Officers Justification for Overtime”
forms as confirmation of his belief that prior approval to accrue overtime for
court appearances is not necessary. Claimant’s Exhibit B, Claimant’s Exhibit C,
Claimant’s Exhibit D
70. Harris testified that the
only difference between the past occasions and the situation presented here is
that in all three of the previous situations he did have a subpoena.
71. Harris has erroneously
concluded that Hunter expects him to obtain prior approval to attend court,
even when overtime is not anticipated, if he has not personally been served
with a subpoena. Testimony of Harris.
72. Harris was not disciplined
for attending the Ditton Trial without prior approval; he was disciplined for providing
inaccurate and unsubstantiated information in an attempt to obtain overtime
compensation following his failure to obtain prior approval to accrue that
overtime. Testimony of Hunter
73. Harris attempted through the
testimony of three other conservation officers to show inconsistency with
respect to the manner in which overtime procedures are understood and followed. Testimony
of Tom Koester, Testimony of Ed Rucker, Testimony of Garringer.
74. However the other conservation
officers who testified exemplify the general knowledge that prior approval is
required to accrue overtime except with respect to emergencies involving human
safety or a necessary immediate response to a complaint or continuation of an
investigation.[2]
[VOL. 10, PAGE 297]
75. Master Conservation Officer
Tom Koester (Koester) testified that
it is not uncommon for a primary officer who receives a subpoena to request the
attendance of an assisting officer who has not received a subpoena.
76. However, Koester, if faced
with the situation that his attendance will result in overtime, stated that he
would seek prior authorization for the overtime. Testimony
of Koester.
77. Ed Rucker (Rucker) has been a Conservation Officer
for seven (7) years. He testified that in
situations where overtime is anticipated in advance it needs to be addressed
with the Lieutenant. Rucker advised that
he too has received late notices to appear in Court but none of the situations
have involved overtime.
78. Rucker further testified
that where the potential for overtime is known several days in advance he has
never experienced difficulty working it out with the Lieutenant. However, Rucker did state that if he were to
receive an urgent call to attend
court he would respond and if necessary address any overtime issue with chain
of command after-the-fact.
79. Garringer testified that if
he were to reverse places with Harris with respect to overtime associated with the
Ditton trial, he would have discussed it with the Lieutenant in advance.
80. Harris also questioned
Hunter, Bickford, Rucker, Koester and Garringer about the practice of the chain
of command allowing supplementation of inaccurate or deficient requests.
81. Hunter and Bickford acknowledged allowing
supplemental information to be provided as justification for initially
deficient overtime requests, while Rucker and Koester agreed that they had been
allowed to supplement such requests for overtime.
82. Harris was afforded the same
opportunity to provide supplemental information in support of his
Justification. Exhibit S3.
[VOL. 10, PAGE 298]
CONCLUSIONS
OF LAW:
83. There is nothing unclear
about General Order 22-01-01.
84. General Order 22-01-01, as
relevant to this proceeding states:
A. PURPOSE The purpose of this policy is to
provide a structure for monitoring, managing and controlling the use of
personnel overtime.
D. PROCEDURES
3. Overtime Management
a. No task or function shall
be performed on overtime by division personnel that could be otherwise
performed during regular work hours.
(1) Overtime approval
No district/section
commander shall approve any request for compensation for additional hours
worked outside of the assigned work schedule nor shall any officer vary from
scheduled work hours except under the following conditions:
(a) Responding to an
emergency where human safety is a vital issue; and/or
(b) Responding to a
complaint or continuing an investigations which is directly related to the
department’s area of responsibility and where immediate law enforcement action
is required; and/or,…
(c) For an official activity
affiliated with department responsibilities or interest and with the prior
knowledge and approval of the appropriate district/section command.
…
e. All overtime must receive
prior authorization unless such authorization is unreasonable due to emergency
circumstances.
85. According to General Order
22-01-01, in two, and only two, situations are conservation officers authorized
to claim overtime compensation without obtaining the prior authorization of the
chain of command. Exhibit S17.
86. First, a conservation
officer may accrue overtime without prior authorization if he/she is
“responding to an emergency where human safety is a vital issue.” Exhibit
S17.
87. Human safety was not an
issue in this situation.
88. Second, a conservation
officer may accrue overtime without prior authorization if he/she is
“responding to a complaint or continuing an investigation which is directly
related to the department’s area of responsibility and where immediate law
enforcement action is required.” Exhibit S17.
[VOL. 10, PAGE 299]
89. This situation did not
involve an ongoing investigation and the evidence is clear that Harris had, at
minimum, one week advance notice of the situation, so there was no immediacy to
it. Testimony
of Harris, Testimony of Garringer.
90. According to General Order
22-01-01, all remaining overtime must be accrued for official activity,
affiliated with the Department’s responsibilities, with the prior knowledge
of district/section command and with the prior approval of district/section
command. Exhibit S17.
91. In essence, attending court,
either with or without a subpoena, does not meet the conditions under which
overtime may be accrued without prior knowledge and approval.
92. The testimony of Koester,
Rucker and Garringer clearly establish that conservation officers assigned to
District 4 are generally aware of the need to obtain prior approval to claim
overtime compensation in a situation such as the one in which Harris found
himself.
93. The evidence fails to
support Harris’ claimed belief that prior knowledge and approval from Hunter
was unnecessary for court appearances.
94. Harris’ own attempt, albeit
a feeble attempt, to contact Hunter or Bickford on April 11, 2005 to address
the potential overtime situation by splitting his shift depreciates the
validity of Harris’ testimony on this point.
95. If Harris’ claim was
accurate that prior authorization for overtime associated with court
appearances is unnecessary he would arguably be correct in his belief that the
“Indiana Conservations Officers Justification for Overtime” does not
accommodate this situation. However, Harris’
claim is without merit when considered against the plain language of General
Order 22-01-01.
96. Consistent with the practice
of Hunter, Harris was provided the opportunity to submit supplementation to his
Justification.
97. In this instance, however,
Harris’ Justification stated inaccurate and misrepresented information that was
impossible to substantiate through supplementation.
98. Harris’ attempt to confuse this
proceeding by equating the necessity to obtain prior approval to accrue
overtime with some notion that prior approval is necessary to attend a trial
without a subpoena is rejected.
99. The distinction between
prior approval for overtime and prior approval to attend court is unmistakable
and Harris’ “misinterpretation” of this point is viewed as an attempt to obfuscate
the plain meaning of General Order 22-01-01 and the disciplinary action that
was taken.
[VOL. 10, PAGE 300]
100.
With respect to Harris’ further notion that accruing overtime for
attending court after having been served a subpoena is somehow different that
accruing overtime for attending court without a subpoena is baseless.
101.
The evidence relating to the appropriateness of the number of overtime
hours claimed by Harris is insufficient to determine that this portion of the
Justification is inaccurate.
102.
Harris’ mistake relating to identifying “
103.
The manner in which Harris referenced a subpoena in the three (3) prior
overtime forms when compared to the Justification at issue here is so subtle as
to be illusory.
104.
Without doubt, the reference to a subpoena in this Justification was
inaccurate and misleading.
105.
Harris indicated on the Justification that he accrued the overtime with
the “prior knowledge and approval of district command,” which is utterly untrue.
106.
The three occasion of Harris accruing overtime for attending court
without first obtaining Hunter’s or Bickford’s authorization are nothing more
than examples of Harris’ past success in the violation of procedures.
107.
This is supported by the fact that Harris, a twenty-one (21) year
veteran conservation officer, is the only one testifying in this proceeding who
claimed not to know that prior authorization is required to accrue overtime in
this situation.
108.
Furthermore, it is unrealistic that a veteran conservation officer,
whose duties require him to apply legal standards to factual situations in
issuing citations and making arrests is unable to comprehend and comply with
the clear requirements of General Order 22-01-01, Standard Operating Procedure
1-1B(D)(1)(c)(3) and 312 IAC 4-6-3(3).
109.
Harris’ unrealistic claim that he did not understand the General Order calls
into question Harris’ contention that instructions provided by Hunter on July
13, 2005 regarding the alternative to the imposition of the three (3) day
suspension were unclear.
110.
Pursuant to 312 IAC 4-4-5, “…the division director will normally impose
discipline in a progressive manner…”
[VOL. 10, PAGE 301]
111.
There is no dispute that Harris has been suspended five (5) times in
his career, with three (3) of those suspensions being imposed in the past four to
five years.
112.
It is also not disputed that Harris has been reprimanded and counseled
on numerous occasions.
113.
Harris further did not dispute Hunter’s or Bickford’s testimony that
many of Harris’ disciplinary problems relate to violations of procedure or that
two of the counselings related specifically to unsubstantiated claims for
overtime compensation.
114.
It is incumbent upon Harris to know, or to learn, what all division
procedures require and to abide them.
[1] Harris was scheduled to work a “J Shift” with no assigned duty hours on April 12, 2005 to accommodate a previously scheduled hunter education class. The class was cancelled and Harris, on his own accord, set his schedule without notification to his chain of command. Hunter testified that Harris, in this situation is required to notify him of the schedule Harris planned to work but Harris testified that he was unaware of that requirement. The other conservations officers who testified were not questioned about this discrepancy between Harris’ and Hunter’s testimony. This is not a violation of procedure at issue here; it is mentioned only as explanation of how Harris’ duty schedule was set as 8:00 a.m. to 4:30 p.m. as opposed to the schedule identified on Exhibit S13.
[2] Conservation Officers Koester and Rucker, while being of the same belief that advance approval is required to accrue overtime when the potential for overtime is known in advance, also acknowledged their belief that court appearances are a continuation of an investigation that could potentially fall within a category of overtime for which notice to chain of command is only required within 24 hours after working the overtime. Hunter disputed this belief except as it would pertain to obtaining a search warrant for benefit of an investigation. Harris did not claim his overtime at issue here on the basis of a continuing investigation and this is not the issue for today.